Excerpt: - .....filed an application before the subordinate judge of murshidabad under section 36, bengal money lenders act of 1940, praying for the re-opening of the mortgage decree 'and other consequential reliefs. the decree-holder resisted the application and contended inter alia that there being no suit or proceeding in connexion with the mortgage debt pending on or after 1st january 1939, the petitioners were entitled to no relief under the money lenders act. the court heard the parties on this point and accepting the contention of the decree-holder dismissed the application of the mortgagors under section 36, bengal money lenders act. there was a subsequent application by the borrower for reconsideration of the order of dismissal but that application was also rejected. after the passing.....

Judgment:

B.K. Mukherjea, J.

1. This rule is directed against an order of the District Judge of Murshidabad dated 17th May 1944, made under Section 40 A, Bengal Agricultural Debtors Act. The petitioners before us borrowed money from the opposite parties on hypothecation of certain properties and the latter obtained a mortgage decree against the petitioners on the basis of the mortgage bond, in the Court of the Subordinate Judge of Murshidabad, some time in 1937. In execution of the decree the mortgaged properties were sold and they were purchased by the decree-holder in January 1938. Some time in 1941, the petitioners filed an application before the Subordinate Judge of Murshidabad under Section 36, Bengal Money Lenders Act of 1940, praying for the re-opening of the mortgage decree 'and other consequential reliefs. The decree-holder resisted the application and contended inter alia that there being no suit or proceeding in connexion with the mortgage debt pending on or after 1st January 1939, the petitioners were entitled to no relief under the Money Lenders Act. The Court heard the parties on this point and accepting the contention of the decree-holder dismissed the application of the mortgagors under Section 36, Bengal Money Lenders Act. There was a subsequent application by the borrower for reconsideration of the order of dismissal but that application was also rejected. After the passing of Bengal Act 2 of 1942, which amended the Bengal Agricultural Debtors Act of 1936, the petitioners presented an application under Section 37A of the Act, before the Special Debt Settlement Board at Kandi against the decree-holder praying for recovery of possession of the properies sold in execution of the mortgage decree. The Debt Settlement Board rejected the application on the ground that as the civil Court had previously entertained an application in respect of the debt under Section 36, Bengal Money Lenders Act, the application under Section 37A, Bengal Agricultural Debtors Act, could not be entertained in view of the provisions of Sub-section (3). There was an appeal taken against this decision to the Appellate Officer who concurred in the view taken by the Debt Settlement Board and dismissed the appeal. The petitioners thereupon filed a petition of revision before the District Judge of Murshidabad under Section 40 A, Bengal Agricultural Debtors Act. The District Judge by his order dated 17th May 1944, dismissed the petition and confirmed the order of the Appellate Officer. It is against this order of the District Judge that the present rule has been obtained.

2. The sole point for our consideration in this rule is what is the meaning to be attached to the expression 'entertain' as used in Sub-section (3) of Section 37A, Bengal Agricultural Debtors Act. The question came up for consideration before this Bench in a number of eases, vide Sashi Bhusan v. Motibala Dassi : AIR1945Cal317 , Sm. Charubala v. Amulya ('45) 49 C. W. N. 156, Lalit Mohan v. Raghu Das ('45) 49 C.W.N. 157 and Bogra Bank v. Ainuddin ('45) 49 C. W. N. 158 and it was held that to 'entertain' is to 'admit a thing for consideration' and when a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law it must be regarded as entertaining the suit or proceeding no matter whatever the ultimate decision might be. Mr. Apurbadhan Mukherji, appearing in support of the rule, has contended before us that the view taken in the above cases is not right. His argument is that 'entertaining' is the same thing as giving relief and it is in this sense that the word is used in Section 14, Limitation Act. He has referred us in this connexion to a number of cases which are to be found reported in Varajlal v. Shomeswar ('05) 29 Bom. 219, Arunachalam v. Lakshmana ('16) 3 A.I.R. 1916 Mad. 944, Sadayatan v. Ram Chandra ('34) 21 A.I.R. 1934 All. 688 and Upendra v. Suryakanta (13) 20 I. C. 205 (Cal.). The contention does not appear to us to be at all sound. The object of Section 14, Limitation Act, is to give protection to a bona fide litigant against the bar of limitation when he has tried, his best to get his case heard but has failed to get a hearing because the Court has been unable to entertain it on account of defect of jurisdiction or other grounds of a like nature. The inability to entertain a suit means not inability to grant relief to the plaintiff but inability to give him a trial at all, and as Section 14, Limitation Act, can be invoked only in cases where the previous suit or proceeding has not been heard on its merits the word; 'entertain' seems to have been deliberately used by the Legislature. Because the section speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds only, which are of a formal nature it, cannot be argued that by implication the Legislature concedes that the Court might be regarded as not entertaining a suit even when the suit fails on its merits. The cases cited by Mr. Mukherji do not touch the present point at all. What is laid down in all of them is that Section 14, Limitation Act, is applicable when the Court itself decides that it is unable to entertain a suit for want of jurisdiction or other similar grounds; but if the suit is withdrawn by the plaintiff under Order 23, Rule 1, Civil P. C., with liberty to bring a fresh suit, then in computing the period of limitation for the second suit the provisions of Section 14(1), Limitation Act, cannot be invoked. The basis of these decisions is that under Order 23, Rule 2, Civil P. C, the suit withdrawn is to be treated as non-existent for all purposes and if the existence of the previous suit has to be ignored, altogether it cannot possibly be taken into account in considering whether the subsequent suit, is or is not barred by limitation. Obviously, these decisions have no bearing on the present question and do not assist the petitioners in the least.

3. We adhere to the view which we have taken in the cases referred to above and hold that a suit is to be regarded as not 'entertained' by the Court only if it is thrown out at its inception and the Court does not decide it on its merits. We may say that the language of the sub-section is not at all happy and there is no clear indication as to what exactly was the intention of the Legislature in making this provision. If the intention of the Legislature was that where a debtor had already obtained relief under one Act he should not be allowed to seek relief under the other nothing prevented it from expressing that intention in clear words. As Section 37A was introduced nearly two years after the Bengal Money Lenders Act of 1940 was passed, and the two Acts were not in existence at the same time it is difficult to say that the principle underlying the sub-section is strictly one of election of remedies. The language of Sub-section (3), however, clearly suggests that if a proceeding is pending before a civil Court though not decided as yet a Debt Settlement Board is not competent to entertain an application under the section. To operate as a bar therefore it is not necessary that there should be a decision by the other tribunal and a fortiori, the nature of the decision, if in point of fact there is a decision already, is immaterial. In these circumstances, it cannot but be held that the sub-section raises a bar as soon as it is established that there was a suit or application entertained for disposal by a civil Court no matter in whichever way it was actually disposed of.

4. It is true that the mere fact that a suit or application is entered in the register of the Court is not conclusive to show that it was entertained. The question whether it is entertainable or not might be raised at a later stage and the Court might then decide not to entertain the case. It is not necessary for us to formulate exhaustively the different grounds upon which a Court might refuse to entertain a suit or proceeding. They may include grounds of jurisdiction and of procedure as well, and in each case the point for determination would be whether the Court did entertain the suit or application and then decided that the plaintiff was not entitled to any relief or it declined to embark upon the case at all. The Bengal Money Lenders Act being a special Act it is necessary that certain facts would have to be established by the borrower to entitle him to relief under the Act. If the Court has jurisdiction to give relief to the borrower and there is no other defect in the procedure or otherwise for which a suit or application is liable to be thrown out in limine and the Court decides on facts admitted or proved that the plaintiff is not entitled to any relief under the Bengal Money Lenders Act it must be held that such decision is on the merits of the case and the case was entertained by the Court and decided against the plaintiff. It has been held by this Bench that when an application under Section 36, Bengal Money Lenders Act, is dismissed by a Court on the ground that the loan was a commercial loan the application should be regarded as being entertained by the Court and not thrown out in limine, 49 C.W.N. 158. We think that the position would be the same when such application is dismissed by the Court on the ground that the decree sought to be re-opened was not made in a suit to which the Act applies. This is also a question relating to the merits of the case and is one of the matters in issue which has to be decided by the Court before it can re-open the decree or grant any relief to the borrower. The Court must first entertain the suit or application before these questions are investigated and the mere fact that points are described as preliminary points is really immaterial. In the case before us the mortgage decree was executed and the properties were sold long before 1st January 1939, and no suit or proceeding in connexion with the mortgage debt was pending on or after that date. In these circumstances, if the Court dismissed the application under Section 36, Bengal Money Lenders Act, and held that the borrower was entitled to no relief it cannot be held that the Court did not entertain the application at all. In our opinion, therefore, the view taken by the District Judge is right.

5. After the arguments were closed Mr. Apurbadhan Mukherji drew our attention to a judgment of our learned brother Henderson J., passed in Civil Rule No. 1362 of 1944 in support of the view that the dismissal of an application under Section 36, Bengal Money Lenders Act, on the ground that there is no suit to which the Act applied amounts to throwing out the application in limine. The facts of this case however are quite different. Here an application for relief made by the borrower under the Bengal Money Lenders Act was dismissed by the Court below on the ground that though proceedings in execution of the decree sought to be re-opened were started by the decree-holder after 1st January 1939 yet these proceedings not being actually pending at the time when the application under the Bengal Money Lenders Act was made the borrower was entitled to no relief. This was obviously a wrong decision and the ground upon which it was based could not be supported. In this Court the decree-holder attempted to support the order of dismissal made by the Court below on the ground that previous to this proceeding under the Bengal Money Lenders Act the borrower had approached the Debt Settlement Board, for relief under Section 37A, Bengal Agricultural Debtors Act, and that application being entertained by the Debt Settlement Board Sub-section (3) of the section operated as a bar to his seeking relief under the Bengal Money Lenders Act. This contention was accepted by Henderson J. and the rule was discharged on that ground. We may say with respect that we are in entire agreement with this decision. In course of the judgment there was another fact noticed by our learned brother namely that even before the borrower approached the Debt Settlement Board there was a still earlier application made by him under Section 36, Bengal Money Lenders Act, but as the decree-holder had not taken any step at that time for execution of the decree the Court rejected the application observing that the borrower might make the application if and when the decree-holder would put the decree into execution. It was observed by our learned brother that this amounted to throwing out of the application in limine. The observation might have been proper having regard to the nature of the order actually made but certainly it was not a matter for decision in the case at all. Nothing really turned upon the question as to whether the first application under the Bengal Money Lenders Act was entertained by the Court or rejected in limine. The question might have had a bearing on the point as to whether the Debt Settlement Board could entertain the application under Section 37A, Bengal Agricultural Debtors Act, but the fact remains that the application was actually entertained by the Debt Settlement Board and not thrown out at its inception and consequently the application under Section 36, Bengal Money Lenders Act, must be deemed to be barred. The decision in the rule mentioned above is perfectly sound and in our opinion it does not assist the petitioners in the present case. The result is that the rule is discharged. We make no-order as to costs.